Tweet Upon a Star

38 Pages·2017·0.4 MB·English

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Volume 8 (2016-2017)
Article 4
Issue 1
November 2016
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Kristin M. Adams
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TWEET UPON A STAR: ORGANIC BRAND
ENGAGEMENT WITH CELEBRITIES ON
SOCIAL MEDIA PLATFORMS
KRISTIN M. ADAMS*
ABSTRACT
Social media is a rapidly evolving form of digital communication
in the modern age. Brands continue to focus increasing resources on
garnering consumer attention on social media platforms and are
demanding measurable results from agencies or internal social
media marketing teams. To both increase and demonstrate the value
of a brand’s social media presence, many companies are engaging
in behaviors that entail riskier legal strategies. Perhaps the most
substantial legal land mine is “real-time content,” in which brands
create and post content on vastly accelerated timelines with trun-
cated legal approval processes in order to interact meaningfully with
consumers. This Note will examine the dearth of guidance in the
current legal landscape and provide pragmatic advice to brands
wishing to win at the real-time content marketing game. When ac-
tivating social media platforms, brands should take stock of their
corporate approval structures and preemptively determine the level
of risk that a particular brand prefers with respect to the legal ram-
ifications of its social media content. This is especially true when
engaging in real-time with celebrities. In order to assess and miti-
gate social media risks, this Note argues that legal counsel should
develop social media content guidelines and conduct regular con-
tent calendar review sessions with the social media account team
in order to identify and remedy social media risks.

* The author is a J.D. Candidate and Graduate Fellow in Court Technology at
William & Mary Law School. She has multiple years of advertising and social
media experience working for top advertising agencies on Fortune 15 and For-
tune 500 brands, focusing primarily on content strategy and account direction.
The author wishes to thank the editorial board and the staff of the William &
Mary Business Law Review for their thoughtful edits. She is indebted to Martin
Salisbury and JoAnn Sanders for their willingness to provide guidance and
insight throughout the drafting stages.

137
138 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 8:137
TABLE OF CONTENTS
INTRODUCTION ............................................................................ 139
I. SOCIAL PLATFORM FUNCTIONALITY AND
ENGAGEMENT OVERVIEWS ....................................................... 142
A. Twitter Mechanics ............................................................. 143
B. Brand-Specific Social Media Engagement Behaviors ...... 146
C. Case Study: Arby’s Tweets at Pharrell Williams During
the Grammys ....................................................................... 150
II. POTENTIAL CAUSES OF ACTION .............................................. 151
A. Case Study: Heigl v. Duane Reade, Inc. ........................... 151
B. Notable Causes of Action ................................................... 155
III. RECOMMENDATIONS TO BRANDS FOR RISK MITIGATION ........ 158
A. Considerations When Developing and Implementing
Brand Social Media Guidelines ......................................... 159
B. Recommendations for Brands Electing to Engage in
Real-Time Content .............................................................. 164
CONCLUSION ............................................................................... 170
2016] TWEET UPON A STAR 139
INTRODUCTION
With the downturn of the United States economy and decreased
corporate advertising budgets, increasing numbers of brands are
turning to, or relying more heavily on, social media advertising
campaigns.1 Studies reveal that 70 percent of brands will increase
their planned social media advertising spending—the highest in-
crease of any advertising budget category; 67 percent also intend
to increase expenditures on social media engagements.2 Likewise,
66 percent of companies have a dedicated social media team—a 9
percent increase over 2014.3 Increased social media spending and
funded social media engagement teams come with an added pres-
sure for social media investment to result in trackable conversions
to website hits, direct sales, or spikes4 in brand affinity.5 However,
many of these key performance indicators (KPIs), which purport
to track return on investment (ROI), fail to adequately capture ROI,
as it is often difficult to measure when, and to what degree, social
media platforms influence a consumer’s purchase decision.6 This

1 The Year of Social?, EMARKETER (Nov. 14, 2013), http://www.emarketer
.com/Article/Year-of-Social/1010386 [https://perma.cc/9KG6-F88P] cited in Shea
Bennett, 88% of Brands Will Use Social Media Marketing in 2014, ADWEEK:
SOC. TIMES (Nov. 14, 2015, 5:00 PM), http://www.adweek.com/socialtimes/smm
-2014/493217 [https://perma.cc/5JHH-LKJP]. The percentage of United States
companies using social media for marketing purposes has steadily increased:
85 percent in 2012, 87 percent in 2013, 88 percent in 2014, and a projected 89
percent for 2015 (based on surveys of company marketing plans). Bennett, supra.
2 2015 State of Marketing, SALESFORCE: MARKETING CLOUD 3 (2015), https://
secure.sfdcstatic.com/assets/pdf/datasheets/mc_2015stateofmarketing.pdf [https://
perma.cc/B3V5-692C].
3 Id. at 27.
4 Sam Petulla, 4 Keys to Calculating ROI for Content Marketers,
CONTENTLY: BRANDS (June 2, 2014), http://contently.com/strategist/2014/06/02
/4-keys-to-calculating-roi-for-content-marketers/ [http://perma.cc/DC3G-953T].
5 Brand affinity relates to the strength of a brand’s emotional connection
with consumers. Jeff Jacobs, Brand Loyalty and Brand Affinity: What’s the
Difference?, QUALITY CERTIFICATION ALLIANCE: BLOG (Oct. 9, 2013), http://
www.qcalliance.org/2013/10/09/brand-loyalty-and-brand-affinity-whats-the-dif
ference/ [http://perma.cc/B3V5-692C].
6 Id. The consumer decision journey, or path down the purchase funnel, var-
ies for every consumer and for each transaction they make. The consumer must
consider the brands, evaluate them, and decide to purchase a specific product
at a specific time. The social media conundrum is that it is nearly impossible
to measure when a social media post affected that consumer’s later decision to
140 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 8:137
pressure is causing some brands to take risker approaches to social
media in order to garner more of the measureable KPIs, such as di-
rect engagements or earned media impressions.7 One such risk is
organically engaging—that is, without notice and without contrac-
tual agreement—with celebrities across social media platforms.8
This interaction may arise in a number of ways: a celebrity may
genuinely value the brand’s product or service and at-mention the
brand,9 telling the brand how much the celebrity likes them; or, a
brand may at-mention the celebrity’s official social media account
in a post.10 While this at-mentioning of celebrities is commonplace
for everyday private individuals, brands must do so cautiously be-
cause it is often impossible for consumers to delineate between
paid/sponsored celebrity endorsements and these spontaneous or-
ganic conversations.11 In fact, the Federal Trade Commission (FTC)
aims to avoid exactly this type of consumer confusion.12 While the
FTC regulations regarding social media advertising endorsements
are outdated, the FTC is investigating brands for similar incidences
of consumer confusion on social media.13 Likewise, because the

purchase a good. This causes skepticism about what the ROI on a social media
campaign actually is. Id.
7 See infra Part I (discussing social media engagement mechanics and brand
social media engagement opportunities); infra note 145 (discussing earned im-
pressions).
8 Leah W. Feinman, Celebrity Endorsements in Non-Traditional Advertising:
How the FTC Regulations Fail to Keep Up with the Kardashians, 22 FORDHAM
INTELL. PROP. MEDIA & ENT. L.J. 97, 102 (2011).
9 See infra note 42 and accompanying text.
10 Kat Dennings (@OfficialKat), TWITTER (June 4, 2014, 9:19 AM), https://
twitter.com/officialkat/status/474223771478269952 [http://perma.cc/826T-NMKC]
(highlighting the conversation the actress spontaneously had with the Denny’s
Diner brand on Twitter); Arby’s (@Arby’s), TWITTER (Jan. 26, 2014, 5:28 PM)
[hereinafter Arby’s Tweet], https://twitter.com/arbys/status/42761400894685
5936 [http://perma.cc/6E3R-3ZLS] (demonstrating an instance in which a brand
at-mentions a celebrity without the celebrity’s prior consent).
11 Feinman, supra note 8, at 133 (“[I]t is unclear as to whether a reasonable
consumer would assume that a celebrity who appears in a well-publicized adver-
tising campaign for a product or brand is also compensated for writing about
the product on her social networking site.”).
12 The FTC uses a “clear and conspicuous” standard for celebrity endorsement
disclosures. 16 C.F.R. § 255.5 (2009).
13 Letter from Mark K. Engle, FTC, to Kenneth A. Plevan, Skadden, Arps,
Slate, Meagher & Flom LLP (Apr. 20, 2010) (on file with FTC website), https://
2016] TWEET UPON A STAR 141
brands are benefiting in some way from the association with the
celebrity—through increases in likes, shares, retweets, or follows—
celebrities are now beginning to bring lawsuits against brands who
misappropriate their names or images.14 Such a legal risk, and the
accompanying fines and legal fees, could easily outweigh the poten-
tial benefits of engaging in these risky content posting strategies.15
This Note will consider the legal rationales behind why brands
should or should not engage in certain online conversations, and
it aims to provide pragmatic solutions so that brands can reasonably
avoid unnecessary legal exposure in a very confusing and rapidly
evolving legal landscape.16 As a case study, it will examine the in-
stances in which brands organically engage with celebrities on so-
cial media sites, with particular emphasis on Twitter. It will begin
by providing an overview of how social media platforms function,
with a focus on engagement mechanics, such as the retweet and at-
mention actions. It will then discuss real-time marketing philoso-
phies and examples of real-time organic celebrity engagements. In
Part II, this Note will survey the potential causes of action against
brands that profit from an organic association with a celebrity.
Prior to concluding, Part III will provide recommendations for

www.ftc.gov/sites/default/files/documents/closing_letters/anntaylor-stores-cor
poration/100420anntaylorclosingletter.pdf [http://perma.cc/2HFX-JT7K].
14 Kimberlee Morrison, Cutting Through the Social Media Jargon: What are
Reach, Impressions and Engagement?, ADWEEK: SOC. TIMES (Sept. 17, 2015,
1:30 PM), http://www.adweek.com/socialtimes/cutting-through-the-social-media
-jargon-what-are-reach-impressions-and-engagement/626743 [http://perma.cc
/J72S-FTMP] (discussing how brands measure success on social media plat-
forms, such as through “impressions” and “engagements”); see generally infra
notes 99–102 and accompanying text (demonstrating how a brand intended to
profit from engaging on social media).
15 Sanford E. Warren Jr., Copyright Infringement Risks Associated with
Using Social Media, IRMI (June 2011), https://www.irmi.com/articles/expert
-commentary/copyright-infringement-risks-associated-with-using-social-media
[http://perma.cc/G93T-2ABH].
16 While many pertinent legal concepts certainly exist, they have not yet
definitively been applied to social media scenarios. It is highly likely that even
as courts do begin to apply the existing legal concepts to social media, the plat-
forms will evolve at such a rapid rate that the precedent will struggle to keep
pace. Theodore F. Claypoole, Privacy and Social Media, ABA: BUS. L. TODAY,
(Jan. 2014), http://www.americanbar.org/publications/blt/2014/01/03a_claypoole
.html [http://perma.cc/2Q6Q-T6Q7] (questioning specifically how state privacy
laws, as an example, will adjust to evolving social media platforms).
142 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 8:137
risk management when engaging with celebrities via Twitter and
other social media platforms.
I. SOCIAL PLATFORM FUNCTIONALITY AND
ENGAGEMENT OVERVIEWS
Social media is a primary form of communication in modern
society.17 Merriam-Webster Dictionary defines “social media” as
“forms of electronic communication ([such] as Web sites for social
networking and microblogging) through which users create online
communities to share information, ideas, personal messages, and
other content ([such] as videos).”18 In fact, social media is such a
prominent subject in current society that it is in the top 10 percent
of all searches on Merriam-Webster.com.19 Facebook, Twitter, In-
stagram, Google+, Tumblr, Pinterest, Snapchat, FourSquare, Red-
dit, YouTube, and LinkedIn are some of the most popular social
media platforms in the United States.20 Facebook is the largest so-
cial media site both within the United States and internationally.21
Facebook has more than 1.28 billion active monthly users, and 72
percent of adults in the United States visit Facebook at least once
per month.22 Twitter is the third most popular social media site

17 Dave Lee, How Twitter changed the world, hashtag-by-hashtag, BBC
NEWS: TECH. (Nov. 7, 2013), http://www.bbc.com/news/technology-24802766
[http://perma.cc/T84Q-XRFD] (“[Twitter] has cemented itself as the home of
live, global chatter.”); Doug Gross, 5 ways Twitter changed how we communicate,
CNN (Mar. 21, 2011, 1:41 AM), http://www.cnn.com/2011/TECH/social.media
/03/21/twitter.birthday.communication/ [http://perma.cc/4MPR-PN97] (Some
call Twitter “a powerful tool for democracy.”).
18 Definition of Social Media, MERRIAM-WEBSTER, http://www.merriam-web
ster.com/dictionary/social%20media# [http://perma.cc/3DWR-PUDA].
19 Id.
20 Shea Bennett, Facebook, Twitter, Instagram, Pinterest, Vine, Snapchat—
Social Media Stats 2014, ADWEEK: SOC. TIMES (June 9, 2014, 3:00 PM), http://
www.adweek.com/socialtimes/social-media-statistics-2014/499230 [http://perma
.cc/F5N7-LU5W]; see also Leading Social Networks Worldwide as of September
2016, Ranked by Number of Users, STATISTA, http://www.statista.com/statistics
/272014/global-social-networks-ranked-by-number-of-users/ [https://perma.cc
/922J-YEXV].
21 Leading Social Media Websites in the United States in October 2015, Based
on Share of Visits, STATISTA, http://www.statista.com/statistics/265773/market
-share-of-the-most-popular-social-media-websites-in-the-us/ [https://perma.cc
/TM59-TWRB].
22 Bennett, supra note 20.
2016] TWEET UPON A STAR 143
domestically, and it has 255 million active monthly users.23 Users
send 500 million tweets per day, and 46 percent of users tweet at
least once per day.24 Instagram has 200 million active monthly
users, while LinkedIn has 187 million, and Pinterest has 40 mil-
lion.25 While Twitter may not have as many users as Facebook,
the Twitter user experience allows for the most organic real-time
conversations.26 As such, this Note will focus on Twitter as a case
study of real-time social platform engagements between celebri-
ties and brands.
A. Twitter Mechanics
Twitter is a digital meeting place for “friends, family, and co-
workers to communicate and stay connected through the exchange
of quick, frequent messages.”27 To start tweeting, a user needs only
to sign up for a free account; Twitter will even recommend initial
actions to help educate new users.28 The first thing users must do
when creating a Twitter account is to decide on a username, com-
monly called a Twitter “handle.”29 Next, users must decide what the
first communication will be: messages posted via a Twitter account

23 STATISTA, supra note 21 (showcasing Twitter as trailing only Facebook
and YouTube in active monthly users).
24 Bennett, supra note 20.
25 Id.
26 Dominique Jackson, Facebook vs. Twitter: Which Is Best for Your Brand,
SPROUT SOC. (Sept. 15, 2015), http://sproutsocial.com/insights/facebook-vs-twitter/
[http://perma.cc/6Z6G-PB2T] (“[As opposed to Facebook,] Twitter is where users
go when they want real-time content. If a company is hosting or attending an
event, Twitter is where people go to follow along with the action while it’s hap-
pening. As soon as people consume one Tweet, they quickly go back to their feed
to see what else is happening.”).
27 New user FAQs, TWITTER, https://support.twitter.com/articles/13920# [http://
perma.cc/J2B6-HCUA] [hereinafter New User FAQs].
28 See Getting Started with Twitter, TWITTER, https://support.twitter.com
/articles/215585?lang=en# [http://perma.cc/HRW5-RFRH] [hereinafter Getting
Started].
29 Shea Bennett, 4 Reasons Why You Need to Change Your Username on
Twitter, ADWEEK: SOC. TIMES (Apr. 11, 2015, 6:00 AM), http://www.adweek
.com/socialtimes/twitter-username-tips/453851 [http://perma.cc/2RCX-XGCA].
Note that Twitter handles exist in the form of “at-account name.” If one creates
a new account with the username ‘StruggleTheCat,’ the handle will appear as
‘@StruggleTheCat’ and would be verbalized as “At Struggle the Cat.”
144 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 8:137
are called “tweets,” which may contain text, photos, videos, and
links.30 Notably, Twitter limits each post to a scant 140 charac-
ters, so as to emulate original cellular text messaging conversa-
tions.31 Users would continue sharing daily thoughts, pictures of
kittens, inspirational quotes, or the occasional emoji to express a
surprisingly vivid array of emotions.32 If the content33 is interest-
ing enough, the new account will start accumulating followers.34
Twitter also allows users to engage more directly with other
users.35 If the account @surfergirl8989 wants to communicate di-
rectly with her friend, @skaterchick247, she has multiple means
of doing so.36 First, let us imagine @surfergirl8989 posts a hilari-
ous tweet, and @skaterchick247 wants to acknowledge how funny
the tweet is. The simplest engagement between the two individuals
would be a “like.”37 @skaterchick247 could click a heart-shaped icon
on @surfergirl8989’s tweet, which would notify @surfergirl8989
that @skaterchick247 has liked her tweet.38 The like engagement

30 Getting Started, supra note 28.
31 New User FAQs, supra note 27.
32 Merriam-Webster defines “emoji” as “any of various small images, symbols,
or icons used in text fields in electronic communication (as in text messages,
email, and social media) to express the emotional attitude of the writer, convey
information succinctly, communicate a message playfully without using words,
etc.” DEFINITION OF EMOJI, Merriam-Webster Online Dictionary, http://www
.merriam-webster.com/dictionary/emoji [https://perma.cc/FMP3-3TZA].
33 In the advertising, social media, and digital marketing industries, the
term “content” refers to any and all things posted to a social media account.
See What are replies and mentions?, TWITTER, https://support.twitter.com/arti
cles /14023# [http://perma.cc/X7CX-AXBF] [hereinafter Replies & Mentions].
34 Grow and engage your follower base, TWITTER: BASICS, https://business
.twitter.com/basics/grow-and-engage-your-follower-base [http://perma.cc /V42A
-DYUG] (discussing how to grow one’s account). When someone “follows” a spe-
cific Twitter handle, it means those people have elected to subscribe to that
handle’s tweets. FAQs about following, TWITTER, https://support.twitter.com
/articles/14019?lang=en# [http://perma.cc/CY5V-FRXD]. Tweets of all accounts
that a person follows will appear on a customized Twitter Feed on that account’s
homepage upon logging into Twitter. Getting Started, supra note 28.
35 Types of Tweets and where they appear, TWITTER, https://support.twitter
.com/articles/119138# [http://perma.cc/83HL-HMNZ].
36 Id.
37 Liking a Tweet, TWITTER, https://support.twitter.com/articles/20169874#
[http://perma.cc/9RKX-M8HY].
38 Id.
2016] TWEET UPON A STAR 145
on Twitter is very much akin to the like on Facebook.39 To verbalize
her adoration for @surfergirl8989’s tweet, @skaterchick247 could
“reply” to @surfergirl8989’s tweet. A reply begins with the handle of
the person to whom the tweet is replying and appears in @surfer-
girl8989’s timeline.40 This reply is only visible to people who follow
both @surfergirl8989 and @skaterchick247.41
Now, imagine @skaterchick247 simply would like to initiate a
conversation with @surfergirl8989. @skaterchick247 would say
something to the effect of, “Thanks @surfergirl8989 for being the
best team captain! #GoTribe.”42 Including @surfergirl8989’s handle
in the middle of the tweet makes this a “mention,” otherwise known
as an “at-mention.”43 Twitter will notify @surfergirl8989 that she
has been at-mentioned, and the tweet including the at-mention will

39 Akarshan Kumar, Hearts on Twitter, TWITTER, https://blog.twitter.com
/2015/hearts-on-twitter [http://perma.cc/WR3K-TQ7P]. Note that Twitter has
recently switched from “favorites” to “likes” as of November of 2015. Id. Twitter
released a statement saying,
We are changing our star icon for favorites to a heart and we’ll
be calling them likes. We want to make Twitter easier and more
rewarding to use, and we know that at times the star could be
confusing, especially to newcomers. You might like a lot of things,
but not everything can be your favorite.
Id.
40 Posting Replies and Mentions, TWITTER, https://support.twitter.com/arti
cles/20169871# [http://perma.cc/9EZN-C2WN].
41 Types of Tweets and where they appear, supra note 35.
42 “Mentions” on Twitter are sometimes vocalized as “at-mentions” in the
vernacular. The meanings are identical; however, this Note will refer to them
“at-mentions” for the sake of clarity. See, e.g., @Mention People and Groups in
Posts and Comments, SALESFORCE, https://help.salesforce.com/apex/HTViewHelp
Doc?id=collab_add_mentioning_people.htm&language=en_US [http://perma.cc
/JD48-JLUG] (showing employees how to “@mention” their peers).
43 It is worthwhile to note that brands operating on Twitter will often utilize
at-mentions in a manner that makes them appear to be more organic. By
placing a period directly in front of an at-mention, it appears that the brand is
simply replying to a celebrity’s generic tweet. While this simple reply would be
seen by a negligible number of people (as those people would need to follow both
the brand and the celebrity), placing the period at the beginning of the tweet
makes it an at-mention, and it is visible to everyone following the brand. Lance
Ulanoff, Here’s how Twitter @mentions are changing, MASHABLE, http://mash
able.com/2016/05/24/twitter-mentions-explained/#VrjEo6.aSEqX [https://perma
.cc/836K-YJFC].